Pepper corn only counts if it's on a rib
At some point, every peppercorn goes through the mill.
As I read Ozanne's argument, he has failed to constitutionalize the issue of recusal. That is, I don't believe he's asserted a violation of due process under the 14th amendment. His motion expressly invokes statutory and regulatory authority without mentioning due process. Failure to constitutionalize the issue means that Ozanne can't pursue the claim beyond the Wisconsin supreme court. Contrast, Aetna Life Ins. Co. v. Lavoie, 475 US 813, 819 (1986) ("We are satisfied as to the Court's jurisdiction over the question of whether Justice Embry's participation violated appellant's Fourteenth Amendment due process rights," because "the Alabama court reached the merits of appellant's constitutional challenge").From a distance, it's impossible to say, of course, whether the omission is tactical. Perhaps Ozanne concluded that a due process argument was too weak. But that strikes me as unlikely, so I'm more than a little curious as to the reason for the omission. Mere inadvertence would be one thing (though not exactly exemplary lawyering); an effort to keep the recall temperature running high something else altogether (an abuse of the prosecutorial function, I'd say in such an event). Maybe a vote can be peeled from the majority in 2011 WI 43. But if not, then failure to preserve the constitutional footing will foreclose further review. That would be unfortunate, because the issue could well be cert-worthy. It's a shame that this isn't an apparent litigation goal.
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